Maui Decision Guidance Finalized January 14, 2021
On January 14, 2021, Acting Assistant Administrator for Water signed and issued final guidance that EPA claims “clarifies how the Supreme Court’s County of Maui v. Hawaii Wildlife Fund decision should be applied under the NPDES permit program.” EPA’s guidance articulates “threshold conditions for triggering the requirement for a NPDES permit—an actual discharge of pollutants from a point source to a water of the United States.” The guidance also lists the factors for consideration as finalized by the Supreme Court: : (1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, (6) the manner by or area in which the pollutant enters the navigable waters, and (7) the degree to which the pollution (at that point) has maintained its specific identity. EPA also lists an 8th factor, “design and performance of the system or facility” as an additional criterion that should be considered. The 30-day comment period for this proposal closed January 11, 2021. The final version of the guidance does not deviate significantly from the initial guidance proposed. A prepublication copy of the final guidance can be found here.
Final ELG Plan 14
This week, EPA published the final Final Effluent Guidelines Program Plan 14 (Plan 14) in the Federal Register. Plan 14 provides updates on EPA’s reviews of industrial wastewater discharges and treatment technologies discussed in the preliminary plan (October 24, 2019), including analyses of industrial sources, discharges of nutrients, and proposed treatment technology reviews. Plan 14 also provides updates on ongoing point source category studies, including EPA’s Petroleum Refining category study, the PFAS Multi-Industry Study, and the Electrical and Electronic Components category. Additionally, EPA is developing:
- revisions to the Centralized Waste Treatment category
- proposed rule to consider BAT limitations for the Steam Electric Power Generating category
- an ANPR for the Organic Chemicals, Plastics, and Synthetic Fibers category
EPA also announced the agency will conduct studies of four categories related to nutrients:
- fertilizer manufacturing
- explosives manufacturing
- plastics molding and forming
- miscellaneous foods and beverages.
EPA Releases its Fiscal Year 2020 Environmental Justice Progress Report
EPA has released its FY2020 Environmental Justice Progress Report, highlighting their progress in advancing environmental justice for minority, low-income, tribal, and indigenous communities across the country.
Highlights of the FY2020 report include the following:
- provided over $160 million in grant funding to support low income and minority communities
- deleted all or part of 27 sites from the National Priorities list for a second consecutive year, to reduce exposure to contaminants
- announced a new $4.3 million grant program, under the Water Infrastructure Improvements of the Nation Act, to help protect children in tribal communities from lead in drinking water by boosting lead testing in schools and childcare centers
- finalized rules that will make a meaningful difference to communities by ensuring that more people – particularly lower-income and minority populations – have greater access to newer, cleaner, more affordable cars, and by reducing lead dust-related risks to children in pre-1978 homes and childcare facilities where lead removal activities take place
- reclassified 20 communities across the country that now meet air quality standards
You can read the full report here.
2019 TRI Data and National Analysis Available
The Toxics Release Inventory (TRI) tracks the management of certain chemicals from the information reported to EPA each year by facilities located in the U.S. in industry sectors such as manufacturing, metal mining, electric utilities, and hazardous waste management. The data reported to TRI are compiled in a publicly available EPA database.
For calendar year 2019, more than 21,000 facilities reported data to EPA, and 201.25 million pounds were released to the environment via discharge to surface water. Of that quantity, nitrate compounds including ammonia, manganese, and methanol accounted for the bulk of releases.
EPA Finalizes Financial Capability Assessment
On January 12, 2021, EPA finalized a new Financial Capability Assessment for Clean Water Act Obligations (FCA). The 2021 FCA advances the ability of communities to more accurately demonstrate the financial burdens they face and increases the transparency of EPA’s considerations as it endeavors to consistently apply FCA methodologies across the country. EPA’s 2021 FCA guidance includes new metrics that more accurately reflect how much low-income communities can afford to pay for service, which impacts the affordability of capital expenditures and operation and maintenance needed to ensure CWA compliance. Additionally, EPA will apply the options and flexibilities from Appendix D of the 2021 FCA when considering economic impacts for public entities seeking revisions to designated uses, water quality standard (WQS) variances, and antidegradation reviews for WQS.
When the official version is announced in the Federal Register, the 2021 FCA will replace the 1997 Guidance for Financial Capability Assessment and Schedule Development.
55 WIFIA Projects
This week, EPA announced that 55 projects in 20 states were invited to apply for $5.1 billion in WIFIA loans. This funding is designed to help finance clean water and drinking water infrastructure projects. Established in 2014, WIFIA is a federal loan program administered by EPA. EPA has indicated that “WIFIA’s aim is to accelerate investment in the nation’s water infrastructure by providing long-term, low-cost supplemental credit assistance for regionally and nationally significant projects. The WIFIA program has an active pipeline of pending applications for projects that will result in billions of dollars in water infrastructure investment and thousands of jobs.” EPA has provided $7.8 billion in credit assistance for projects since 2018. In response to the 2020 WIFIA Notice of Funding Availability, EPA received 67 letters of interest from both public and private entities, of which 55 were selected. For a list of selected projects, please see EPA’s press release. To learn more about the selected projects and the 55 projects that are invited to apply, visit EPA’s website.
2021 Pesticide General Permit Proposed
EPA is proposing the draft 2021 Pesticide General Permit (2021 PGP). The draft 2021 PGP covers point source discharges from the application of pesticides to waters of the United States. Once finalized, the 2021 PGP will replace 2016 PGP which expires October 31, 2021 at midnight. The draft 2021 PGP has the same requirements and conditions as the 2016 PG. EPA proposes to issue this permit for 5 years in:
- Massachusetts, New Hampshire, New Mexico, and Washington D.C.,
- All U.S. territories except the Virgin Islands,
- Federal facilities in Delaware, Vermont, Colorado, and Washington, and
- All Indian Country except in Maine.
Comments on the draft permit are due by March 16, 2021. Further details on the draft proposed 2021 PGP can be found here.
Executive Order Alters EPA Order of Succession
An Executive Order issued on January 8, 2021 alters the order of EPA officials who are to perform the duties of EPA Administrator or Deputy Administrator when those officials have resigned, died, or are otherwise unable to serve.
The changes revoke the prior succession list, EO 13763 (2017), and enable the Associate Deputy Administrator for Programs to act as Administrator. EPA has signaled that after Administrator Andrew Wheeler’s departure on January 20, 2021, Associate Deputy Administrator for Programs Charlotte Bertrand will be acting EPA Administrator.
EPA Publishes LCRR Final Regulatory Revisions
Today, EPA published final regulatory revisions to the National Primary Drinking Water Regulation (NPDWR) for lead and copper under the authority of the Safe Drinking Water Act (SDWA). These revised requirements provide greater and more effective protection of public health by reducing exposure to lead and copper in drinking water. This final rule is effective as of March 16, 2021. For judicial review purposes, this final rule is promulgated as of January 15, 2021.
Read the Federal Register Notice here. LCRR materials are available on regulations.gov, Docket ID No. EPA-HQ-OW-2017-0300.
EPA to Propose Extension to Two ICRs: CWA S.404 State-Assumed Programs and Cross Media Electronic Reporting Rule
EPA is planning to submit extensions to two information collection requests (ICR), “Clean Water Act Section 404 State-Assumed Programs” (Assumed 404) and “Cross-Media Electronic Reporting Rule” (CROMERR). Before doing so, EPA is soliciting public comments on specific aspects of the proposed information collection. These actions are proposed extensions of the ICRs, which are currently approved through July 31, 2021 and August 21, 2021, respectively.
The 404 ICR covers the collection of information EPA needs to perform its program approval and oversight responsibilities and the State or Tribe needs to implement its program. The CROMERR ICR covers the collection of information EPA needs to allow EPA to comply with the Government Paperwork Elimination Act of 1998; (ii) provide a uniform, technology-neutral framework for electronic reporting across all EPA programs; (iii) allow EPA programs to offer electronic reporting as they become ready for CROMERR; and (iv) provide states with a streamlined process—together with a uniform set of standards—for approval of their electronic reporting provisions for all their EPA-authorized programs.
Comments on both ICR extensions are due March 16, 2021. For more information, including the types of information relevant to the ICR, read the Federal Register Notice here (Assumed 404) and here (CROMERR).
ACWA Submits Maui Decision Guidance Comment Letter
On Monday, January 11, 2021, ACWA submitted a formal comment letter regarding EPA’s proposed guidance memorandum titled “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program”. In the letter, ACWA requested that EPA issue guidance which defers to states permitting authorities on all interpretive and analytical decisions regarding the Maui decision and associated factors. In the alternative, should EPA wish to go forward with a more substantive document, ACWA requested that EPA consider several other recommendations including: working with states to identify and share examples of analysis and criteria associated with the 7 factors; development of tools, support materials, and other resources to assist states; compile a compendium of best practices; discuss and confer with states on the legality of factor 8; and work with states to answer several challenging implementation questions. A copy of ACWA’s draft comment letter can be found here. Please see the above article where EPA finalizes Maui guidance 3 days after comment period closes.
Meetings and Webinars
NPDES eRule Webinar
Date: Tuesday, January 19, 2021 | 2:30-4:30 PM Eastern Time
Registration: Click here
The U.S. EPA Office of Compliance invites you to participate in an important webinar regarding the status of implementation of the “NPDES eRule” and EPA’s plans for working with NPDES States in the months and years ahead. EPA Regional and state NPDES permitting, enforcement, and information technology staff are encouraged to attend and participate in this webinar. We are reserving 30 minutes of this meeting for your questions and comments.
This webinar will provide an overview of recent changes to the NPDES eRule that will help ensure a smoother transition from paper to electronic reporting for the NPDES program. In particular, EPA issued a final rule in early November postponing the compliance deadline for Phase 2 implementation of NPDES eRule by five years and providing states with additional flexibility to request even more time as needed. See 85 Fed. Reg. 69,189 (Nov. 2, 2020). The final rule also makes changes to the NPDES eRule to clarify existing requirements and eliminate some duplicative or outdated reporting requirements.
This webinar will also provide updates on the following topics:
- Tracking Implementation of the NPDES eRule
- Overview of EPA support for NPDES eRule implementation
- Update on EPA tool development for NPDES eRule implementation
- Update on NPDES Noncompliance Report development
- Update on a new draft data mapping template for Phase 2 data
- Plans for ICIS modernization and how it could affect NPDES eRule Phase 2 implementation
This webinar will help states better understand EPA’s current overall approach and schedule for implementing Phase 2. EPA encourages all states to attend. If, however, you cannot attend, a recording and transcript of the webinar and questions and answers will be available afterwards.
EPA’s Transportation Stormwater Permit (MS4) Compendium
Date: February 3, 2021 | 2:00-3:00 PM Eastern Time
Registration: Click here
Stormwater discharges from roadways, including those within defined urbanized areas, are often covered under the NPDES Municipal Separate Storm Sewer System (MS4) regulations. State Departments of Transportation (DOTs) may be co-permittees with Phase I MS4s under a Phase I permit or small MS4s under either an individual or general Phase II MS4 permit. These permits typically include requirements related to pollution prevention, public education, public involvement, construction, post-construction for new development and redevelopment, and illicit discharge detection and elimination. Transportation stormwater management differs from traditional MS4 stormwater management in several ways, so transportation MS4 permit requirements are sometimes written differently.
This webinar will discuss EPA’s “Transportation Stormwater Permit Compendium,” a compendium of excerpted permit language from MS4 permits and other resources that can be used and/or tailored for transportation-specific MS4 permits. The webinar will discuss characteristics specific to transportation MS4s and roadway runoff, and will provide example excerpts of State DOT MS4 permits addressing various aspects of stormwater management for linear infrastructure projects.
- Heather Goss, U.S. Environmental Protection Agency
- Susan Jones, U.S. Department of Transportation – Federal Highway Administration
1,4-Dioxane: Risk Management Under TSCA
Date: February 2, 2021 | 1:00-3:30 PM Eastern Time
Registration: Click here
EPA will host a webinar to educate stakeholders on the risk management process under TSCA and the findings in the final risk evaluation for 1,4-dioxane. The webinar also provides an opportunity for the public to provide input on considerations the agency should take into account for managing these unreasonable risks.
If you would like to provide oral comments during the webinar, you must register by January 28, 2021 at 5 PM EST. Select “attend and make a comment” when registering. You may register as a listen-only attendee at any time up to the end of the meeting. For listen-only attendees, select “listen-only” when registering.
Details on how to access the webinar and slides will be sent to participants after registering via Eventbrite.com. Please ensure that emails from Eventbrite.com will not be blocked by your spam filter. EPA will provide a transcript and recording on EPA’s 1,4-dioxane webpage following the webinar.
Additionally, EPA will begin formal consultations with state and local governments, tribes, environmental justice communities, and small businesses. There will also be an open public comment period on any draft risk management regulation.
Learn more about risk management for 1,4-dioxane here.
TSCA is our nation’s primary chemicals management law. This law requires EPA to evaluate the risks associated with exposure to existing chemicals using the best available science then take action to reduce or eliminate any unreasonable risk identified. The agency issued a final risk evaluation for 1,4-dioxane in December 2020 showing unreasonable risks to workers and consumers under certain conditions of use. EPA is now moving to risk management for this chemical, the next step in the process required by TSCA.
There are several actions EPA can take alone or in combination under TSCA to address unreasonable risks including banning a chemical; restricting the manufacturing, processing, distribution, use, or disposal; requiring warning labels/testing; and requiring manufacturers to notify distributors of any unreasonable risks. EPA has up to one year after issuing a final risk evaluation to propose risk management actions followed by a public comment period and final rule.
Assessment Coordinator, Environmental Scientist & Specialist – Advanced | New Mexico Environment Department
Location: Santa Fe, New Mexico
Closing Date: Open until filled
This position is responsible for preparing the SWQB Assessment Protocols, assessing surface water quality data to develop the Clean Water Act List of Impaired Waters, preparing the CWA 303(d)/305(b) Integrated Report, and for occasional TMDL development. This position contributes to the fulfillment of CWA 106 grant commitments and to meeting CWA 303(d)/305(b) assessment and TMDL goals. This position is primarily responsible for developing assessment protocols, leading the collation and assessment of water quality data, and the preparation of the Clean Water Act 303(d)/305(b) Integrated Report. The position is also responsible for the development of TMDL documents and related implementation or restoration plans through data analysis and environmental modeling. This position will also present documents to stakeholders during public meetings and for approval to the Water Quality Control Commission.
For more information on the position and how to apply, click here.